GARY P. LUBOWIECKI v. ERNST & YOUNG U.S. LLP, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0577-04T10577-04T1

GARY P. LUBOWIECKI,

Plaintiff-Appellant,

v.

ERNST & YOUNG U.S. LLP, JOSEPH

ZBOROVANCIK, BARBARA SCHMIDT-KEMP,

AND HERBERT JANSEN,

Defendants-Respondents.

 

Argued November 2, 2005 - Decided

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Docket No.

L-2690-04.

Douglas S. Bramley argued the cause for appellant

(McMoran, O'Connor & Bramley, attorneys;

Bruce P. McMoran and Mr. Bramley, on the brief).

A. Michael Weber argued the cause for respondents

(Littler Mendelson, attorneys; Mr. Weber and

Gary S. Prish, of counsel and on the brief).

John J. Gibbons argued the cause for amicus curiae

CPR Institute for Dispute Resolution (Gibbons,

Del Deo, Dolan, Griffinger & Vecchione, attorneys;

Mr. Gibbons, on the brief).

PER CURIAM

Plaintiff, Gary P. Lubowiecki, appeals the order of the Law Division denying his partial summary judgment motion, in which he sought to invalidate the arbitration agreement he entered into with his employer, defendant Ernst & Young. The motion judge rejected plaintiff's argument that, because the arbitration agreement was unconscionable and unenforceable, it violated public policy. Plaintiff also appeals the court's ruling dismissing his cause of action and referring the matter to arbitration. Plaintiff framed his cause of action as an age discrimination case, in violation of New Jersey's Law Against Discrimination. N.J.S.A. 10:5-12(a).

After reviewing the record and applicable law, we affirm substantially based on the well-reasoned opinion of Judge Hurley. We add only the following brief comments. Plaintiff's principle objection to the arbitration clause concerned the use of the CPR Institute for Dispute Resolution (CPR). In its amicus brief, CPR describes itself as a "non-profit research, educational, and convening organization that, among other things, has devised and promulgated certain protocols, procedures and rules for resolving public and business disputes, including employment disputes."

Plaintiff, on the other hand, describes CPR as "an organization created, maintained, controlled and funded by corporations and the management law firms that represent them." Plaintiff also asserts that the general counsel of Ernst & Young is a member of the CPR board of directors and executive committee. In other words, according to plaintiff, CPR is an organization created by and for the benefit of management. As such, plaintiff contends that CPR's "hand-picked" pool of arbitrators cannot be trusted to adjudicate impartially employment-related disputes.

Despite the absence of direct evidence showing an actual conflict of interest, Judge Hurley agreed that CPR's close ties to Ernst & Young created an appearance of impropriety, sufficient to warrant its removal as the arbitration providers for this case.

My only concern here is this appearance of conflict as it relates to the CPR and the defendant in the matter Ernst & Young. That appearance of conflict relates to the defendant's general counsel being a member of the executive committee as - as recent as April of 2004; that it is a sustaining member.

The court then substituted the American Arbitration Association for CPR as the organization from which arbitrators would be chosen. Ernst & Young has not appealed from that determination.

This substitution, in our view, adequately addressed the central issue in contention in plaintiff's case. We see no legal basis to invalidate an arbitration agreement that was voluntarily entered into by plaintiff, a lawyer with considerable experience as a tax attorney. The fact that Ernst & Young allegedly conditioned plaintiff's continued employment upon the execution of the agreement does not vitiate its enforceability. In short, we are in complete agreement with Judge Hurley's wise approach, and affirm substantially based on his decision delivered from the bench on August 4, 2004.

 
Affirmed.

(continued)

(continued)

4

A-0577-04T1

December 8, 2005